May 1, 1997
The Senate on Monday is expected to take up the FY97 supplemental appropriations bill , S. 672, reported by the Senate Appropriations Committee yesterday. While the bill as reported contains no additional funds for the Federal Election Commission (FEC), it is anticipated that a Democratic Senator may offer such an amendment on the floor, in order to comply with the Administration's request for $1.7 million "for startup costs associated with investigations and audits pursuant to the Federal Election Campaign Act (FECA)." Under these circumstances, Senators may be interested in the following summary of a recent appeals court case decided against the FEC.
When an agency of the Federal Government sues a party and loses, the prevailing party is entitled to reimbursement for its attorney's fees and costs if the position of the agency was not "substantially justified." That's what happened to the FEC in a case decided last month.
In the case -- against the Christian Action Network (CAN) -- the FEC was ordered to pay the fees and costs of the Christian Action Network because the FEC's legal position "was foreclosed by clear, well-established Supreme Court caselaw" -- and, according to the Court, the Commission knew it. This decision is going to cost the FEC (read taxpayers) about $50,000. (Of course, the taxpayers also picked up the tab for the FEC's own legal bills, and all related costs.)
What the Christian Action Network Said. The Federal Election Commission claimed that the Christian Action Network had violated the federal election laws by using its corporate funds to pay for a television commercial in which the following text was read by a narrator:
"Bill Clinton's vision for America includes job quotas for homosexuals, giving homosexuals special civil rights, allowing homosexuals in the armed forces. Al Gore supports homosexual couples' adopting children and becoming foster parents. Is this your vision for a better America? For more information on traditional family values, contact the Christian Action Network."
Federal Law and the Constitutional Law of Free Speech. The Federal Election Campaign Act of 1971 (FECA), as amended, makes it unlawful for a corporation to use treasury funds for any "contribution or expenditure in connection with" a federal election. 2 U.S.C. 441b(a). However, the section cannot be taken at face value.
To avoid declaring 441b(a) unconstitutional as an overbroad restriction on free speech, the Supreme Court has construed the section narrowly so that a corporate expenditure for a political communication is now prohibited by 441b(a) only if the communication employs "explicit words," "express words," or "language" advocating the election or defeat of a specifically identified candidate. This express advocacy standard turns on the use of certain key words such as "vote for," "elect," "support," and "cast your ballot for," or "vote against," "defeat," and "reject."
Supreme Court Requires a "Bright-Line" Rule to Protect Free Speech. By insisting on the use of certain words, the Court has established a bright-line rule which specifies that the law cannot be violated (i.e., the line cannot be crossed) unless the specified words are used.
In Federal Election Commission v. Christian Action Network, the case decided on April 7, 1997, the Fourth Circuit said:
The [Supreme] Court adopted the bright-line limitation that it did in Buckley [v. Valeo] in order to protect our cherished right to political speech free from government censorship. . . . The Court opted for the clear, categorical limitation, that only expenditures for communications using explicit words of candidate advocacy are prohibited, so that citizen participants in the political processes would not have their core First Amendment rights to political speech burdened by apprehensions that their advocacy of issues might later be interpreted by the government as, instead, advocacy of election result. . . . The Court could have drawn the line between permissible and impermissible expenditures differently, but a different line would have come at the cost of expanded regulatory authority in a sphere where government regulation, if it is to be permitted at all, must be viewed with the utmost suspicion -- a cost the Court had no difficulty concluding was too high for the incremental additional 'benefits' that would be obtained by vesting broader power in the government, and in particular in the FEC.
FEC's Attempt to Redefine "Express Advocacy." The FEC has been attempting to enlarge its role under the FECA-as-definitively-construed-by-the-Supreme-Court by redefining and enlarging the term "express advocacy." The Commission adopted a definition that appealed to reasonableness rather than adhering to the bright-line requirement that the High Court said the First Amendment required. The FEC's new definition said, in part, that "express advocacy" was any communication that "when taken as a whole and with limited reference to external events, such as the proximity to the election, could only be interpreted by a reasonable person as containing advocacy of the election or defeat" of a "clearly identified candidate."
The FEC conceded that CAN's advertisement did not use "express words" advocating the election or defeat of a particular candidate. However, the Commission took the position that CAN had violated 441b(a) because its ad "unmistakably" and "expressly advocated" the defeat of then-Governor Clinton through its combination of words, imagery, film footage, and music.
Free Speech Not Subject to FEC's Approval. "Stripped of its circumlocution," the Fourth Circuit said, the FEC's argument is "that the determination of whether a given communication constitutes 'express advocacy' depends upon all of the circumstances, internal and external to the communication, that could reasonably be considered to bear upon the recipient's interpretation of the message. The right to engage in political speech would turn on an interpretation of the 'imagery' employed by the speaker." The Fourth Circuit went on to say:
The FEC's enforcement action against the Christian Action Network in this case brings into relief the extent to which, under the FEC's interpretation of 'express advocacy,' political speech would become hostage to the vicissitudes of the Commission, because, although [one] viewer could interpret [CAN's] video as election advocacy of the defeat of Governor Clinton, another viewer could just as readily interpret the video as issue advocacy on the question of homosexual rights. Indeed, the commercial . . . that the FEC here contend[s] fall[s] squarely within its regulatory purview [is] precisely the kind [ ] of issue advocacy that the Supreme Court sought to protect in Buckley and [FEC v.] Massachusetts Citizens for Life; and the FEC's interpretation of these advertisements is exactly that contemplated by the Court when it warned of the constitutional pitfalls in subjecting a speaker's message to the unpredictability of audience interpretation.
FEC Knew that Its Legal Position Was Untenable. The Fourth Circuit went on to say that the law was clear, that the FEC knew what the law was (as shown by its submissions in another case and in "its own dissembling before this court"), and that therefore the FEC's position against the Christian Action Network was not "substantially justified." Attorney's fees were to be paid, therefore.
A Reasonableness Rule May be Reasonable, but It Would Not Protect Free Speech. The Fourth Circuit conceded that, as the FEC urged, it may be that "metaphorical and figurative speech can be more pointed and compelling" and thus more successful than a plain, literal plea to vote for so-and-so. The court conceded as well that a "combined message of words and dramatic moving images, sounds, and other non-verbal cues such as film editing, photographic techniques, and music, involving highly charged rhetoric and provocative images" would be more powerful than words alone. These truths about the power of language and the electronic media do not change the constitutional law, however. The Fourth Circuit said:
[T]he Supreme Court has unambiguously held that the First Amendment forbids the regulation of our political speech under such indeterminate standards. 'Explicit words of advocacy of election or defeat of a candidate,' . . . the [Supreme] Court has held, are the constitutional minima. To allow the government's power to be brought to bear on less, would effectively be to dispossess corporate citizens of their fundamental right to engage in the very kind of political issue advocacy the First Amendment was intended to protect -- as this case well confirms.
$50,000 in Legal Fees, and Those May be the Smaller Costs. In the Christian Action Network case, the Federal Election Commission overreached. It tried to regulate political speech that was protected by the First Amendment, and it did so even when it knew that the speech was protected and beyond its reach. That decision is going to cost the taxpayers about $50,000 -- an amount that does not include either the monetary costs to the FEC itself or the heavy nonmonetary costs that necessarily result from any lawsuit in which the enormous resources of the Federal Government are brought to bear upon a private organization simply because that organization chose to exercise its First Amendment rights.
[Notes: Attorney's fees are allowed under the Equal Access to Justice Act. In the principal case, attorney's fees were sought under 28 U.S.C. 2412(d)(1)(A). The principal case discussed in this paper is Federal Election Comm'n v. Christian Action Network, --- F.3d ---, 1997 U.S. App. LEXIS 6477 (4th Cir., decided April 7, 1997). When emphases are used in quotations from that case, the emphases were added by RPC. The leading case construing 441b(a) is Federal Election Comm'n v. Massachusetts Citizens for Life, 479 U.S. 238 (1986), see especially pages 243 & 249; that case followed the law of Buckley v. Valeo, 424 U.S. 1 (1976), see especially pages 43-44, 44 note 52, & 80 note 108 (the Buckley case involved language similar to 441b(a) but since repealed). The FEC's regulation is at 11 C.F.R. 100.22(b) (promulgated in 1995). The FEC relied in large part on its victory in Federal Election Comm'n v. Furgatch, 807 F.3d 857 (9th Cir.), cert. denied, 484 U.S. 850 (1987). However, the Fourth Circuit pointed to the FEC's brief to the Supreme Court in Furgatch (the brief arguing successfully that certiorari should not be granted) to show that the Commission was well aware of the law.]